R. v. Bain Date:, 2011 BCPC 332

Citation: R. v. Bain Date: 20111107 2011 BCPC 0332 File No: 37135-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KIM VIVIAN BAIN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: B.Goddard Counsel for the Defendant: A. Penhall and D.J. Marion Place of Hearing: Campbell River , B.C. Date of Hearing: August 10, 2011 Date of Judgment: November 7. 2011 Introduction [ 1 ] Kim Vivian Bain is charged with a single count of willfully obstructing a peace officer, namely, Constable Alexa Blacklock in the execution of her duties contrary to

section 129 (

a) of the Criminal Code . [ 2 ] Defence has served the Crown with a notice seeking to exclude the evidence that the accused obstructed a peace officer. Reliance is placed on Section 24 (2) for violations of

Section 8 and 9 of the Canadian Charter of Rights and Freedoms . [ 3 ] The Crown called Constable Blacklock and Constable Lindsey Clow to testify. Their evidence was heard on a voir dire. The Evidence on the Voir Dire [ 4 ] In response to a 911 call, Constable Blacklock and Constable Clow were dispatched to a disturbance at Unit 2 – XXX– YY Avenue in Campbell River, B.C involving a male threatening a resident with scissors. The complainant in Unit 2 informed the police that a male, who had been at a party in adjacent Unit 1, was the person who threatened him.

Constable Blacklock arrested a male suspect for this alleged offence outside of the complex containing Units 1 and 2. The arrested male indicated to Constable Blacklock that he was “a friend of Kim”. They were from Port Alberni and visiting friends. He did not know the name of the friends. Constable Clow testified that the suspect said that he had been at a party in Unit 1. [ 5 ] In order to reach Unit 2, it was necessary to pass by Unit 1. Constable Blacklock observed that the door to Unit 1 was wide open. It was around 5:39 am on December 22, 2009. There was nobody outside of Unit 1.

There was no party taking place at Unit 1 and it was quiet. From the doorway, Constable Blacklock was able to observe a portion of a mattress situated on the floor and could see a pair of feet. Constable Blacklock shouted several times from the doorway at the occupant, identifying herself as a police officer. No response

was received from the person lying on the mattress. Constable Blacklock entered Unit 1. No invitation was extended to Constable Blacklock by any occupant to enter the residential premises. Her intention was to determine whether or not the person whose feet she observed in Unit 1 was all right or as sometimes characterized in the evidence “was she ok”. In other words, Constable Blacklock initially had health and safety concerns for the apparent occupant of Unit 1.

Accordingly, Constable Blacklock entered Unit 1. [ 6 ] Upon entering Unit 1, she woke up the lone occupant being a female who was asleep on the mattress. That person is the accused. There is no suggestion that she was unconscious. The accused was extremely intoxicated. However, she could stand unsteadily by herself with some limited assistance from the police officers, did not have any injuries and did not appear to be in need of medical attention. She was able to talk. A conversation occurred between Constable Blacklock and the accused.

In the course of the conversation, the accused informed Constable Blacklock that she was visiting friends from out of town, she didn't know where the friends were and she was only able to provide their first names and not their last names. She denied knowing the suspect from the incident that had occurred at Unit 2. There is no evidence as to who actually resided at Unit 1. [ 7 ] During the discussions Constable Blacklock asked the accused whether or not there was somebody who could come and get her. The accused indicated that there was nobody available.

Constable Blacklock was concerned about leaving the accused alone in Unit 1 since the door to Unit 1 could not be locked from the outside, by means of its keyed deadbolt system, in order to secure the premises. [ 8 ] There is no evidence that the accused was seeking any assistance from the police. There is no evidence about whether the accused was in fact seeking any sort of assistance from a third party or what other alternatives to remaining in Unit 1, if any, the police offered to the accused or discussed with her. When asked by Constable Blacklock how she was, the accused said she was fine.

Based upon the evidence before me, hospitalization for medical treatment or observation apparently was not an option that the police felt was appropriate nor was an apprehension of the accused under the Emergency Procedures found in

section 28 of the Mental Health Act . Neither police constable mentioned these as possible alternatives in their testimony. [ 9 ] During their discussions, Constable Blacklock asked the accused her name. The accused identified herself as Lynn Ann Hart and gave her date of birth as January 7, 1960. Constable Blacklock immediately ran that information through the police computer databanks. It took only a few moments. There was no record of a person by that name with that date of birth. Constable Blacklock attempted to get additional information from the accused, such as whether she had a married name.

The accused said she did not and said she was from Parksville. [ 10 ] In her testimony, Constable Balcklock said on no other occasion during her career as a police officer was she unable to find a record of an individual in the police computer data bank, except where a false name may have been provided. At that point, Constable Blacklock concluded that the accused was lying and had provided a false name. Constable Blacklock arrested the accused for obstruction and with Constable Clow escorted the accused outside of Unit 1. At that point of time the accused had not been Chartered or warned.

The accused was turned over to Constable Theissen for him to provide the usual Charter information and the usual warning and for him to provide transportation of the accused to the RCMP detachment headquarters in Campbell River. [ 11 ] Constable Blacklock spoke further to the accused at the police station. The accused indicated that she wished to speak to a lawyer. She was given that opportunity. Prior to going off shift, Constable Blacklock passed on the accused to the dayshift for the purposes of identifying and fingerprinting her.

The accused was released from custody under the name Lynn Ann Hart. [ 12 ] When she returned to duty, Constable Blacklock was able to track down the identity of the accused through further inquiries that she made with the Oceanside detachment of the RCMP and the Port Alberni detachment of the RCMP. On January 13, 2010, Constable Banks of the Port Alberni detachment forwarded a copy of a photograph taken of the accused on December 24, 2009. The person in the photograph was identified by Constable Blacklock as the accused.

As it turned out, and as Constable Blacklock then learned, there was an existing arrest warrant outstanding for the accused. [ 13 ] There is no issue that Unit 1 was a private residence at the time that Constable Blacklock entered into it. She did not have a search warrant or an arrest warrant at hand for the accused at the time the police entered into Unit 1. [ 14 ] At the time that Constable Blacklock entered into the Unit 1, she was not investigating the accused for any offense. Her primary concern was the safety of the person whose feet she could observe and who was lying on the floor.

Position of Defence [ 15 ] Defence counsel's position with respect to the evidence on the voir dire may be summarized as follows:

a) there is nothing to link the accused with the incident being investigated at Unit 2. The male suspect in that incident had already been arrested.

b) entry into the Unit 1 by the police was unlawful in the absence of a search or arrest warrant.

c) the police did not arrest the accused for being present in Unit 1.

d) once they had determined that the accused was safe, the police were obliged to leave Unit 1. When they failed to leave the private residence, they violated the accused’s

section 8 Charter rights and presumably also her

section 9 Charter rights not to be arbitrarily detained or imprisoned.

e) alternatively, even if the police officers entered the private residence under the interests of safety, once they determined that the accused “was fine, only drunk”, their interest in that person and in that residence ended and they were required to leave. Any further investigation (and presumably any detention) was unlawful.

f) the accused was not informed at the scene that she was under arrest nor informed of the charges she would be facing. She was not informed of her

section 10 Charter rights on arrest or detention namely to be informed promptly of the reason therefore and the

right to retain and instruct counsel and to be informed of that right. [ 16 ] Therefore the defence argues that the accused’s

section 8 , 9 and 10 (

a) and (

b) Charter rights were violated. The defence requests the Court to exclude the evidence led by Constable Blacklock regarding the statement made to her by the accused. Upon the exclusion of that statement, their position is that there is no evidence to convict the accused of obstructing the police officer in the course of her duty and submits that the accused should be acquitted. [ 17 ] In the alternative, the defence argues that if I find that the accused’s Charter rights were not violated and that the evidence will be allowed, then the defence submits as follows:

a) Constable Blacklock and the other officer did not enter Unit 2 lawfully;

b) Constable Blacklock did not have the right to arrest or to investigate the accused;

c) Constable Blacklock was not acting in the execution of her duties;

d) the accused “has standing" to be in a private residence; and

e) the police officers had no duty or obligation enter the private residence to “see if she was okay". Position of Crown [ 18 ] Crown counsel's position may be summarized as follows:

a) Constable Blacklock, as a police officer, has a duty to ensure the public peace is maintained and to protect the citizens of Canada from harm.

b) based on the information Constable Blacklock had received that the male suspect arrested from the incident at Unit 2 may have been at a party at Unit 1 and the fact that the door to Unit 1 was wide open at 5:39 am on a late December day, she was obligated to investigate in order to determine whether a problem existed at Unit 1.

c) having observed the person lying on the floor of Unit 1, who was unresponsive to the Constable Blacklock’s calls, in the circumstances Constable Blacklock had a duty to determine whether the occupant needed assistance. From the doorway, she could not be satisfied that the person had not been injured or killed, nor could she be satisfied that the person was safe from potential danger that would exist if the police officer left without securing the premises. Securing the premise was not an available option without the assistance of the occupant of Unit 1.

Accordingly, in order to fulfill that duty, the police officer was obligated to enter into Unit 1. Crown says that the accused’s expectation of privacy is reduced in the unsecured “residence of another person” where the “exterior door of the premises was wide open in the early morning hours”.

d) having determined that the occupant was very intoxicated, and that she was sleeping with the front door of Unit 1 wide open, it was reasonable for the Constable Blacklock to conclude the accused was not taking reasonable steps to provide for her own safety.

e) it was therefore reasonable for Constable Blacklock to ask the accused her name in an attempt to investigate whether the police may be able to locate a responsible adult to care for the accused in her intoxicated state.

f) the accused actions of providing a false name prevented the police constable from properly determine whether or not there was a responsible adult locally who could care for the safety of the accused. Similarly it denied the opportunity for Constable Blacklock to discharge her duty, namely to check for and arrest individuals with outstanding warrants.

g) Constable Blacklock had reasonable and probable grounds to believe that the accused had provided a false name, based on the lack of a matching name appearing in the police databases and that she, as a police officer was being obstructed.

h) Crown says that there was no violation of the accused

section 8 rights against unreasonable search or seizure because Constable Blacklock was not conducting a search for evidence and nothing was seized. Moreover, Crown says that Constable Blacklock was not conducting an investigation into any wrongdoing by the accused. The obstruction did occur by way of the giving of a false name when Constable Blacklock was “exploring opportunities to ensure the accused’s safety”.

i) furthermore, Crown says that the position of the defence with respect to an alleged violation of the accused’s

section 8 Charter rights, by extension, amounts to an argument that of that the police need a warrant to enter a private residence, “no matter what their purpose", including, by way of example, having a warrant prior to speaking to an individual to confirm their relationship to a victim and entering a residence to provide next of kin notification arising from the death in the family. In the view of Crown, the protection afforded by

section 8 being the right to be free from unreasonable search and seizure “arises where the police are investigating the accused for an offense or are attempting to locate evidence that would assist in the proof of an offence."

j) with respect to the alleged breach of the accused’s

section 9 Charter rights, Crown contends that in the absence of Constable Blacklock investigating an offense, there was no detention of the accused as contemplated by the Charter. Again, based on concerns for the safety of the accused, Crown submits that if there had been any other available options to assure the safety of the accused, Constable Blacklock "would not have prevented the accused from leaving".

k) furthermore, Crown submits that the actual arrest of the accused was made on reasonable and probable grounds to believe the accused lied about her identity and in doing so obstructed Constable Blacklock. Therefore there was no arbitrary aspect to Constable Blacklock arresting the accused in contravention of

section 9 .

l) with respect to the alleged violation of the accused’s

section 10 Charter Rights, Crown again contends that the accused was not detained or arrested and was not the subject of an investigation for an offence at the time the Constable Blacklock spoke with the

accused as part of her attempt to ensure the accused’s safety. The accused was only arrested and taken into custody once the Constablehad concluded there were reasonable grounds to believe that the accused committed the offense of obstruction. Crown says “all of theevidence in this case that the Crown relies on was obtained prior to any potential breach of the accused's 10 (

b) rights, and nothing flowsfrom the potential breach". The Law [19] The Supreme Court of Canada in R. v. Feeney, (1997), (SCC), 115 C.C.C. (3d) 129 sets out the general rulethat under the Charter a warrant is required for an arrest in a dwelling house.

Section 529.1 sets out the statutory authorization. 529.1 A judge or justice may issue a warrant in Form 7.1 authorizing a peace officer to enter a dwelling-house described in the warrantfor the purpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied byinformation on oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that: (

a) a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada; (

b) grounds exist to arrest the person without warrant under paragraph 495(1)(

a) or (

b) or

section 672.91; or (

c) grounds exist to arrest or apprehend without warrant the person under

an Act of Parliament, other than this Act. 1997, c. 39, s. 2; 2002, c. 13, s. 23. [20]

Section 529.3 of the Criminal Code sets out the statutory authority to enter a dwelling house without a warrant in certaincircumstances: Authority to enter dwelling without warrant 529.3

(1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law,the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to insection 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in thedwelling-house, and the conditions for obtaining a warrant under

section 529.1 exist but by reason of exigent circumstances it would beimpracticable to obtain a warrant. Exigent circumstances

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer: (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to anyperson; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-houseand that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. 1997, c. 39, s. 2. [21] There is a recognized common law exception of entry into a private premise to make an arrest without a warrant. It is where thepolice were engaged in “hot pursuit”. [See R. v. Feeney]. That is not the situation in this case. [22] Although not specifically stated in their argument, I understand that Crown is saying that in this case there are exigentcircumstances as contemplated by

Section 529.3 (2)(a), (namely to prevent imminent bodily harm or death to any person) that wouldentitle them to make a warrantless entry into Unit 1. [23] I am mindful of the line of authorities flowing from the Supreme Court of Canada decision in R. v. Godoy, [1991] 1 S.C.R. 311which recognize that the police may enter a home or other premises without a warrant in an emergency situation. In that decision, Mr.Justice Lamar noted that the police must act in the course of their duty and are not entitled to use unjustifiable police powers: Atparagraph 22 he states: 22.

Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order toascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious andsignificant enough to merit some intrusion on a resident’s privacy interest. However, I emphasize that the intrusion must be limited tothe protection of life and safety.

The police have authority to investigate the 911 call and, in particular, to locate the caller and determinehis or her reasons for making the call and provide such assistance as may be required. The police authority for being on private propertyin response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacyor property. In Dedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the policeduty and it must be reasonable.

A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each casewill be considered in its own context, keeping in mind all of the surrounding circumstances. (I specifically refrain from pronouncing onwhether an entry in response to a 911 call affects the applicability of the “plain view” doctrine as it is not at issue on the facts of the caseat bar.) [24] Both Crown and Defence have referred me to R. v. Milino [2009] B.C.J.

No 2617 and decision of Mr. Justice Chamberlist of theSupreme Court of British Columbia. It is a case that involved the police entering into an unlocked door of a private residence occupiedby the accused. The entry was prompted by concerns over suicide threats made by Ms. Milino. The police found Ms. Milino asleep and

when they woke her they found she was intoxicated. The police arrested her under the Mental Health Act as being a danger to her selfand forcibly took her to a hospital over her protests. The court dismissed the charges of assaulting a police officer on the basis that thearrest was not lawful and the police were not acting in the execution of their duty when they unlawfully detained Ms. Milino. The courtfound there were no objective grounds to believe that accused was a danger to her self and concluded on the evidence that the basis foran arrest under

section 28 of the Mental Health Act had not been met. [25] In upholding the acquittal decision of Provincial Court Judge O’Byrne in the first instance, Chamberlist, J. in paragraph 27 of hisdecision adopts the reasoning below as follows : [27] The learned Provincial Court judge commenced his discussion at para. 35 to 45: [35] The starting point for the discussion herein is the proposition that a warrantless search is prima facie an unreasonable search: seeHunter et al v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145. [36] An individual has a high expectation of privacy in his or her residence, and a warrantless arrest in a dwelling house is generallyprohibited: see R. v. Feeney. [37] The power to arrest without a warrant is subject to the standard that a reasonable person placed in the position of the officer mustbe able to conclude that there were, indeed, reasonable and probable grounds to do so: see R. v.

Storrey. [38] A peace officer making the decision to arrest without warrant must take into account all information that supports his decision aswell as all information that detracts from it: see R. v. Golub. [39] The test for arrest under a provincial statute was set out by Mr. Justice Errico in the decision of R. v. Robinson, as cited in R. v.P.F.G., 2005 BCPC 187, a decision of His Honour Judge Skilnick. In R. v. Robinson, an unreported 1992 decision of the Prince RupertRegistry File 13072, Mr. Justice Errico stated: I think that the test laid down by the Supreme Court of Canada in R. v.

Storrey, (1990) (SCC), 53 C.C.C. (3d) 316 foran arrest under the Criminal Code must also apply to arrest under a provincial statute. I do not think that a lesser standard is acceptableto justify an arrest for a regulatory offence than for a crime. I think if there is to be a different standard, it should be higher, if anything,for the less serious offence. The test then for an arrest under

section 43 [now

section 41] of the Liquor Control and Licensing Act, toparaphrase the conclusion reached at page 324 in R. v. Storrey would be : it must be apparent to the arresting officer that the person wasintoxicated in a public place. In addition, it must be justifiable from an objective point of view, that is to say, a reasonable person placedin the position of the officer could conclude that it was apparent that the person arrested was intoxicated. [40] Mr.

Justice Errico went on further in Robinson to state: An arrest for intoxication in a public place is not an arrest for having consumed alcohol or for being under the influence of alcohol. Thepurpose of the arrest is for the protection of the public and there must be a significant reason for the arresting officer to deprive thecitizen of his or her freedom. [41] To extract from the reasoning of Justice Errico in R. v. Robinson, it must be apparent to the arresting officer that Ms.

Milino (1)was acting in a manner likely to endanger her safety or others, and (2) was apparently a person with a mental disorder as defined in s. 1 ofthe Mental Health Act as having a disorder of the mind that requires treatment and seriously impairs the person’s ability (

a) to reactappropriately to the person’s environment, or (

b) to associate with others. [42] Again, following the reasoning of Mr. Justice Errico, a reasonable person in the position of the officer must be able to reach thesame conclusion. [43] In the case at bar, the police officers entered the home without a warrant. They awoke the accused who was asleep in her bed inher dwelling place. She is noted to have been drinking. She is naked. She asks the officers to turn around so she can dress. She is lucidand acting appropriately to her environment. She has a discussion with the officers about going to the hospital with them. She has a callplaced to her sister.

All of these actions reflect a person who is orientated in time, place, and person and not someone whose ability toassociate with others is seriously impaired by a mental disorder. The mood swings as described by the officers from angry, to sad, tohappy, are as equally consistent with someone who is under the influence of alcohol as somebody suffering from a mental disorder. [44] In order for Constable Kay to lawfully arrest Ms. Milino in her dwelling house without a warrant, he has to have cogent andcompelling grounds to do so. I find that those grounds are not made out here. [26]

Section 24 of the Canadian Charter of Rights and Freedoms provides as follows: Enforcement of guaranteed rights and freedoms 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Analysis

[ 27 ] The reasoning in R. v. Milino is applicable to the case before me, notwithstanding that it deals with an arrest under a provincial statute. In the case before me there is an absence of cogent and compelling grounds for the police to either detain or arrest Ms. Bain. [ 28 ] At paragraph 61 in his reasons, Chamberlist J., offers the following guidance: [61] The respondent concedes that there are very strong public policy reasons for police to be unrestrained in their ability to respond to potentially life and death emergencies.

The respondent took no issue with the good faith exercise or jurisdiction in demonstrably exigent circumstances, however, when balancing the rights of individuals in private dwelling houses those jurisdictional boundaries must always be carefully and clearly circumscribed. In that way the peace officers acting originally on exigent circumstances must balance their need to respond with facts as they unfold. [ 29 ] That observation applies equally well to the case before me. [ 30 ] This is not a situation where grounds existed to arrest a person without a warrant under paragraph 495(1) (

a) or (

b) or

section 672.91 of the Criminal Code . This is not a situation involving a 911 call to a residence. It is not even the situation of where the police were called to or specifically directed in any fashion to attend at Unit 1. However, the approach outlined in Godoy is applicable to the circumstances in this case. This is a situation which did justify the police entering into Unit 1 without a warrant for the limited purposes of ensuring the safety of the occupant. [ 31 ] What they found was an individual sleeping whom they awoke. There is no doubt that the accused was intoxicated.

However, she was apparently able to carry on a coherent conversation with Constable Blacklock. In fact, she apparently was coherent enough to appreciate she was in the presence of a police officer and to formulate a lie about her identity.

The accused may have been at some risk due to intoxication, however, objectively she certainly was not in danger of imminent bodily harm, based upon the evidence before me. [ 32 ] The police may have had some concerns about the fact that the accused was intoxicated, however, those concerns must also be assessed in light of the fact that they did not apparently consider hospitalization or apprehension under the Mental Health Act to be necessary.

There is no evidence that the accused was behaving in a manner which endangered her or anybody else. [ 33 ] Once the police officers had verified that the accused was not an in danger of imminent bodily harm or death, their right to continue to remain in Unit 1 terminated and they were obliged to withdraw.

They had satisfied their duty. [ 34 ] While their safety concerns initially may have been reasonable when they saw the accused lying on the floor, after speaking to her, they sought to impose a solution on the accused that was beyond their powers to do so, namely, to either place the accused into the care of another individual or to require her to leave the residence. [ 35 ] Instead of withdrawing as they were obliged to do and to thereby limit their intrusion on her privacy and liberty, the police detained the accused. [ 36 ] The evidence supports the fact that Constable Blacklock was detaining the accused.

She made the decision not to permit the accused to leave Unit 1. Crown's submission supports this conclusion when they say: "The Constable was attempting to find someone who could come and get the accused, and would not have prevented the accused from leaving if the accused's safety was assured." [ 37 ] That detention was not justified. It was beyond justifiable police powers and the detention of the accused was not a lawful detention.

At that point Constable Blacklock was not conducting her duties. [ 38 ] Constable Blacklock then proceeded to conduct an investigation of the accused in Unit 1 by asking her a series of questions. She had no reasonable basis for conducting that investigation. That was also beyond Constable Blacklock’s justifiable police powers. Accordingly, I find that Constable Blacklock was not in the execution of her duties at the time the accused lied to her about her name and birth date. In these circumstances, the accused had a right not to speak or provide information about her identity to the police.

The giving of a false name to the police in these circumstances did not amount to obstruction contrary to

section 129 (

a) of the Criminal Code because they were not acting in the execution of their duty [see R. v. Daoud , 2002 O.J. No 4754 , Ontario Court of Justice]. [ 39 ] What flows from this is that the arrest of the accused was therefore not lawful. [ 40 ] I do not accept Crown’s extended argument that a warrant would be required to enter a private residence in circumstances where the police wished to speak to an individual to confirm their relationship to a victim or to provide notice of a family death to next of kin.

It overlooks the obvious alternative of seeking an invitation from the occupant of that residence to enter for the purposes of carrying on those discussions. Conclusion [ 41 ] Based upon the evidence before me, I agree with the position of defence counsel that the accused’s rights under sections 8 and 9 of the Charter were violated and that a remedy under

section 24 of the Charter of Rights and Freedoms is warranted having regard to all of the circumstances. Accordingly, the evidence of the accused’s statement to Constable Blacklock will be excluded pursuant to section 24 (2) of the Charter . Therefore, there is insufficient evidence to convict the accused of the offence under

section 129 (

a) of the Criminal Code and I dismiss the charges against her. By the Court __________________________________

The Honourable Judge J.P. MacCarthy